Fair warnings from February: Priorities, Penalties and Powers!

February was a frenetic month: the ACCC released its 2018 priorities, two Bills on the ACL were released and the Productivity Commission released its draft report on competition in the Australian Financial System.

February has seen frenetic activity in the consumer and competition law space, with the following potential game-changers all unfolding within the shortest month of the year:

ACCC’s ambitious ‘to do’ list for 2018
In late February, ACCC Chair Rod Sims unveiled the hotly awaited 2018 Compliance and Enforcement policy, revealing that the following focus areas would be front and centre in the ACCC’s investigations and enforcement activities for the year:

• consumer issues in broadband and energy services;
• competition in the financial services and commercial construction sectors;
• systemic consumer guarantees problems in the new car market;
• emerging competition and consumer issues in online markets; and
• unfair contract terms and compliance with the franchising code in B2B contexts.

For a more detailed look at what to expect from the ACCC this year, read our summary here.

ACL penalties loom large
In mid-February, the Treasury Laws Amendment (2018 Measures No. 3) Bill 2018 (Cth) was introduced to Parliament which, if passed, will substantially increase the penalties for many breaches of the Australian Consumer Law (ACL) to be in line with those for competition law breaches. Such a change would send businesses an unequivocal message that breaches of the ACL can be as detrimental to consumers as anti-competitive conduct. For a breakdown of the maximum civil and criminal penalties in the Bill, read our analysis here.

ACCC to get more ammunition
A separate bill, the Treasury Laws Amendment (Australian Consumer Law Review) Bill 2018 has been released for consultation. This Bill sees unfair contract terms and product safety play starring roles in the consumer protection space by proposing to arm the ACCC with expanded information gathering powers in respect of these priority areas.

The Bill also has other aces up its sleeve including:

• increased penalties for failing to notify voluntary recalls and a proposed broad definition of “recall”;
• a requirement for a single ‘headline price’ for fees or charges associated with pre-selected options;
• extending the unconscionable conduct protections to publicly listed companies; and
• changing the definition of ‘financial services’ in the ASIC Act to include ‘financial products’.

For a more detailed look at what’s in the Bill, read our overview here.

The Productivity Commission’s findings and recommendations on the financial system
On 7 February 2018, the Productivity Commission released its draft report on its inquiry into competition in the Australian Financial System. The Commission’s findings revealed that the state of regulation of Australia’s highly concentrated financial system has been driven by a relatively blinkered focus on stability at the expense of competition, which in turn has compromised consumer choice. The Commission’s draft recommendations reflect a strong resolution to improve the balance between these, at times, competing regulatory objectives. The report’s far-reaching recommendations, if adopted, will impact many industry participants and consumers in Australia’s financial system. Read more about the findings and recommendations here.